Today’s blog is our Fall review of a few areas that we keep getting calls about. California employees in all categories (we represent all California employees who find their interests no longer in synch with their employers due to the failure of employers to follow the laws of this state), have called in the last month with questions about the following:
1. I want to fly home for Thanksgiving and understand it’s an official holiday. Am I entitled to the time off? If I work at the store during Thanksgiving, will I get premium pay? California and federal labor laws do not recognize holidays as entitlement to additional pay. If, however, your working during the holiday results in your working overtime (more than 40 hours in a week (state and federal FLSA), or either more than 40 hours or 8 hours in a day (state Labor Code and Industrial Welfare Commission), then you are entitled to overtime.
2. A bunch of employees have been given holidays off, but due to seniority, I’m being asked to work seven days in a row. Is that legal? No, California’s Labor Code provides one day of rest. However, if you agree to work that seventh day and it results in overtime, you are entitled to double pay for the overtime.
3. My employer tells me to use my car to pick up supplies at the local Office Depot. He’s never offered to reimburse me for the miles on my car. Can I ask for payment? Yes, California Labor Code 2802 provides that you are entitled to reimbursement for all expenses incurred in carrying out your job. Keep a list of your actual out of pocket costs and argue for a per-mile reimbursement based on current Internal Revenue Service guidelines. (It changes from time to time, but was recently about .50/mile).
4. I am an assistant manager for a large, national retail boutique chain here in Southern California. Our job is pretty much to “float” and fill in when a cashier is missing, check in and unload deliveries, etc. I feel like I should get overtime for the long hours, especially during this time of year when most of our sales occur. Am I entitled to ask for overtime? I’m on the clock and get docked if I’m off work for a medical reason for even an hour.
Short answer, yes! If your title is “assistant manager” but you are doing the same work that your “subordinates” do, you should get overtime and meal and rest breaks. Keep track of your hours. Also make sure that you are actually recording the “correct” hours. We have had many cases were employees were working “off the clock” (security guards who “doff and don” uniforms, travel for 30 minutes to their actual work location before clocking in; employees who have to park their cars and take a corporate vehicle to the actual work site, say on a military base; employees asked to clock out and remain at work; these are examples of working off the clock. You may qualify as a class action representative, which means you’ll get paid at the court’s approval in addition to your share of the class member proceeds.
5. My employer has told us my corporate e mail account is not private. I use it for personal and business reasons. Isn’t that an invasion of privacy?
Unfortunately, the courts have been quite consistent lately in calling any corporate e mail account fair game. Even if you use your corporate account to contact an attorney (like this contact you just made!) you will have given up the privacy of the attorney-client privilege. NEVER EVER contact an attorney or engage in personal confidential exchanges on your company e mail. NEVER open your personal e mail “through” the corporate account. Be careful if you have a co worker who e mails you through his or her corporate account. Your response may not be considered confidential.
6. I’m leaving on pregnancy leave soon. Is “baby bonding” time something I can plan for after the delivery? Baby bonding time is available IF you are entitled to Family Medical Leave. In addition to federal FMLA, California employees are entitled to California Family Rights Act Leave(CFRA). These two leaves overlap, but the bottom line is that if you are entitled to FMLA for a serious health problem, then you can use it for baby bonding time. Must be employed one year (1,250 hours minimum) and the employer must have 50 employees within 75 miles of the workplace. (Distance of 75 miles is determined by measuring commonly traveled roads.The number 50 is determined by also counting owners who are also W-2 employees and part time employees witrh 1250 hours in last year). You are also entitled to intermittent leave. Rules vary on how short that intermittent leave can be, from the lowest number of minutes on the time clock to a minimum of two weeks. Check with your HR Department if you plan intermittent leave.
7. I et the baby bonding/pregnancy leave thing. Is this paid leave? Only if you have a private policy or apply for state disability. We rarely see employer-paid pregnancy-related leaves.
8. I left my job several years ago. A friend told me I was a victim of retaliation for complaining about illegal activities relating to Medicare Fraud. Can I still sue? Short answer, probably. There are different time periods (two years for termination in violation of public policy, three years for Labor Code violations, four years for unfair business practices) for different causes of action. If you retain a firm to represent you as a qui tam realtor (whistle blower bringing a claim on behalf of the federal or state government), you may have up to six years. See an attorney immediately!
With regard to discrimination, generally you must file a claim with the State of California Department of Fair Employment and Housing within one year (or the EEOC within 300 days). You will then get a right to sue letter which will give you up to 1 year to file a lawsuit. The federal EEOC right to sue letter is 90 days in California. I’m planning a future blog on just the different time periods for you to sue.
Only an attorney licensed in your state (we practice in ten offices throughout California with main offices in Los Angeles) can give you legal advise after they are familiar with the facts of your case.
Employment Attorney in San Diego & Los Angeles